Case4:13-cv SBA Document40 Filed10/14/14 Page1 of 11

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1 Case:-cv-0-SBA Document0 Filed// Page of 0 SAM HIRSCH Acting Assistant Attorney General Environment & Natural Resources Division United States Department of Justice LESLIE M. HILL (D.C. Bar No. 00) [email protected] Environmental Defense Section 0 D Street N.W., Suite 000 Washington D.C. 000 Telephone (0) -0 Facsimile (0) - Attorneys for Defendant ROBERT UKEILEY, Admitted Pro Hac Vice Law Office of Robert Ukeiley Mountain Meadows Road Boulder, CO 00 Telephone: 0--0 [email protected] [additional attorney for Plaintiff included in signature block] Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CENTER FOR BIOLOGICAL DIVERSITY, v. Plaintiff, GINA McCARTHY, in her official capacity as the Administrator of the United States Environmental Protection Agency, Defendant. OAKLAND DIVISION CONSENT DECREE

2 Case:-cv-0-SBA Document0 Filed// Page of 0 WHEREAS, on November, 0, Plaintiff Center for Biological Diversity ( Plaintiff or CBD ) filed the above-captioned matter against Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency (hereinafter EPA or Defendant ); WHEREAS, Plaintiff filed its first amended complaint (Dkt. No. 0) on January, 0, and its second amended complaint (Dkt. No.) on January 0, 0; WHEREAS, Plaintiff alleges that EPA has failed to undertake certain nondiscretionary duties under the Clean Air Act ( CAA ), U.S.C. 0-q, and that such alleged failure is actionable under section 0(a)() of the CAA, U.S.C. 0(a)(); WHEREAS, in Claim, Plaintiff alleges that EPA has failed to perform a duty mandated by CAA section 0(k)()(B), U.S.C. (k)()(b), to find that certain states failed to submit nonattainment state implementation plans ( SIPs ) for the following areas designated nonattainment for the 00 fine particulate matter, or PM., National Ambient Air Quality Standard ( NAAQS ), see nd Am. Compl. (Dkt. No. ): AREA STATE Imperial County California Pittsburgh-Beaver Valley except nonattainment New Pennsylvania Source Review element Milwaukee-Racine except nonattainment New Source Wisconsin Review and emission inventories elements Tacoma Nonattainment New Source Review element Washington WHEREAS, EPA finalized a rule, Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the Fine Particle (PM.) National Ambient Air Quality Standard (NAAQS) and 00 PM. NAAQS, Fed. Reg., (June, 0), which establishes a deadline of December

3 Case:-cv-0-SBA Document0 Filed// Page of 0, 0, by which states must submit SIPs complying with Subpart of Part D, title I of the CAA requirements; WHEREAS, EPA believes issuance of the above-mentioned final rule renders Claim therefore moot; WHEREAS, EPA also promulgated a final rule redesignating the Milwaukee- Racine nonattainment area to attainment for the 00 PM. NAAQS, rendering Claim moot as to the Milwaukee-Racine area, Redesignation of the Milwaukee-Racine 00 - Hour Fine Particle Nonattainment Area to Attainment, Fed. Reg., (Apr., 0); WHEREAS, in Claim, Plaintiff alleges that EPA has failed to perform a duty mandated by CAA sections 0(k)()-(), U.S.C. (k)()-(), to take final action to approve or disapprove, in whole or in part, certain 00 PM. NAAQS nonattainment SIP submissions addressing nonattainment new source review from states for the five areas listed below, see nd Am. Compl. (Dkt. No. ): AREA/STATE ELEMENT Los Angeles South Coast, California Non-Attainment New Source Review Charleston, West Virginia Non-Attainment New Source Review Steubenville, Ohio-Weirton, West Virginia Non-Attainment New Source Review San Joaquin Valley, California Non-Attainment New Source Review Fairbanks, Alaska Non-Attainment New Source Review; WHEREAS, on August, 0, EPA took final action approving California s SIP revision addressing nonattainment new source review for 00 PM. NAAQS for the

4 Case:-cv-0-SBA Document0 Filed// Page of 0 San Joaquin Valley, Approval and Promulgation of Implementation Plans, State of California, San Joaquin Valley Unified Air Pollution Control District, New Source Review, Fed. Reg., (Sept., 0), and therefore Claim is moot as to that area; WHEREAS, EPA took final action to redesignate two of the five nonattainment areas to attainment, Approval of the Redesignation Requests and the Associated Maintenance Plans of the Charleston Nonattainment Area for the Annual and the 00 -Hour Fine Particulate Matter Standards, Fed. Reg., (Mar., 0) (Charleston, West Virginia); Approval of Redesignation Requests of the West Virginia Portion of the Steubenville-Weirton, OH-WV Nonattainment Area for the Annual and 00 -Hour Fine Particulate Matter Standards, Fed. Reg.,0 (Mar., 0) (Stuebenville, Ohio-Weirton, West Virginia); WHERAS, as a result of the redesignation of the Charleston, West Virginia area and the Steubenville, Ohio-Weirton, West Virginia area, West Virginia is no longer required to submit nonattainment SIPs addressing nonattainment new source review with respect to these areas; WHEREAS, EPA has not taken final action pursuant to CAA sections 0(k)()- (), U.S.C. (k)()-(), to approve or disapprove, in whole or in part, certain plan submissions, with respect to the remaining two nonattainment areas; WHEREAS, the relief requested in the Second Amended Complaint includes, among other things, an order from this Court to establish a date certain by which EPA must fulfill its obligations for both Claims and ; WHEREAS, Plaintiff and EPA have agreed to a settlement of this action without admission of any issue of fact or law, except as expressly provided herein; WHEREAS, Plaintiff and EPA, by entering into this, do not waive or limit any claim, remedy, or defense, on any grounds, related to any final EPA action;

5 Case:-cv-0-SBA Document0 Filed// Page of 0 WHEREAS, Plaintiff and EPA consider this to be an adequate and equitable resolution of all the claims in this matter and therefore wish to effectuate a settlement; WHEREAS, it is in the interest of the public, Plaintiff Center for Biological Diversity, Defendant EPA, and judicial economy to resolve this matter without protracted litigation; WHEREAS, Plaintiff and EPA agree that this Court has jurisdiction over this matter pursuant to the citizen suit provision in CAA section 0(a)(), U.S.C. 0(a)(), and that venue is proper in the Northern District of California pursuant to U.S.C. (e) and N.D. Cal. Civ. Local Rule -(c)-(d); WHEREAS, the Court, by entering this, finds that the Consent Decree is fair, reasonable, in the public interest, and consistent with the Clean Air Act; NOW THEREFORE, before the taking of testimony, without trial or determination of any issues of fact or law, and upon the consent of Plaintiff Center for Biological Diversity and Defendant EPA, it is hereby ordered, adjudged and decreed that:. The appropriate EPA official shall sign a notice of final rulemaking to approve, disapprove, or approve in part and disapprove in part, certain plans pursuant to sections 0(k)()-() of the CAA, U.S.C. (k)()-(), no later than the date indicated below for the following areas designated nonattainment for the 00 PM. NAAQS: a. Los Angeles South Coast, California area by April, 0; and b. Fairbanks, Alaska area by December, 0.. If either California or Alaska withdraws its above-listed submittal, then EPA s obligation to take the action required by Paragraph is automatically terminated.. EPA shall, within days of signature, deliver notice of each action taken pursuant to paragraph of this to the Office of the Federal Register for review and publication.

6 Case:-cv-0-SBA Document0 Filed// Page of 0. After EPA has completed the actions set forth in Paragraph of this Consent Decree and after notice of each final action required by paragraph has been published in the Federal Register and the issue of costs of litigation, including attorneys fees has been resolved, EPA may move to have this Decree terminated and the action dismissed. Plaintiff shall have fourteen () days in which to respond to such a motion, unless the parties stipulate to a longer time for Plaintiff to respond.. The deadlines established by this may be extended (a) by written stipulation of Plaintiff and EPA with notice to the Court, or (b) by the Court upon motion of EPA for good cause shown pursuant to the Federal Rules of Civil Procedure and upon consideration of any response by Plaintiff and any reply by EPA.. If a lapse in appropriations occurs within one hundred and twenty (0) days prior to the deadline in Paragraph in this Decree, that deadline shall be extended automatically one day for each day of the lapse in appropriations.. Plaintiff and EPA agree that this shall constitute a complete and final settlement of all claims that Plaintiff has asserted against the United States, including EPA, under any provision of law in connection with Center for Biological Diversity v. McCarthy, (N.D. Cal.). The Center for Biological Diversity therefore discharges and covenants not to sue the United States, including EPA, for any such claims.. In the event of a dispute between Plaintiff and EPA concerning the interpretation or implementation of any aspect of this, the disputing party shall provide the other party with a written notice outlining the nature of the dispute and requesting informal negotiations. These parties shall meet and confer in order to attempt to resolve the dispute. If these parties are unable to resolve the dispute within ten () business days after receipt of the notice, either party may petition the Court to resolve the dispute.. No motion seeking to enforce this or for contempt of Court shall be properly filed unless the procedure set forth in Paragraph has been followed,

7 Case:-cv-0-SBA Document0 Filed// Page of 0 and the non-moving party has been provided with written notice at least ten () business days before the filing of such motion.. The deadline for filing a motion for costs of litigation (including attorney fees) for activities performed prior to entry of the is hereby extended until ninety (0) days after this is entered by the Court. During this period, the Parties shall seek to resolve informally any claim for costs of litigation (including attorney fees), and if they cannot, the Center for Biological Diversity will file a motion for costs of litigation (including attorney fees) or a stipulation or motion to extend the deadline to file such a motion. EPA reserves the right to oppose any such request.. This Court shall retain jurisdiction over this matter to enforce the terms of this and to consider any requests for costs of litigation, including attorney fees.. Nothing in the terms of this shall be construed (a) to confer upon this Court jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Courts of Appeals under CAA section 0(b)(), U.S.C. 0(b)(), including final action take pursuant to section 0(k) of the CAA, U.S.C. (k), approving, disapproving, or approving in part and disapproving in part a SIP submittal or (b) to waive any claims, remedies, or defenses that the parties may have under CAA section 0(b)(), U.S.C. 0(b)().. Nothing in this shall be construed to limit or modify any discretion accorded EPA by the Clean Air Act or by general principles of administrative law in taking the actions which are the subject of this, including the discretion to alter, amend, or revise any final actions promulgated pursuant to this. EPA s obligation to perform each action specified in this Consent Decree does not constitute a limitation or modification of EPA s discretion within the meaning of this paragraph.

8 Case:-cv-0-SBA Document0 Filed// Page of 0. Except as expressly provided herein, nothing in this shall be construed as an admission of any issue of fact or law nor to waive or limit any claim, remedy, or defense, on any grounds, related to any final action EPA takes with respect to the actions addressed in this.. Plaintiff reserves the right to seek additional costs of litigation, including reasonable attorney fees, incurred subsequent to entry of this and arising from Plaintiff s need to enforce or defend against efforts to modify its terms or the underlying schedule outlined herein, or for any other unforeseen continuation of this action. EPA reserves the right to oppose any such request for additional costs of litigation, including reasonable attorney fees.. It is hereby expressly understood and agreed that this was jointly drafted by Plaintiff and EPA. Accordingly, the parties hereby agree that any and all rules of construction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this.. The parties agree and acknowledge that before this can be finalized and entered by the Court, EPA must provide notice of this in the Federal Register and an opportunity for public comment pursuant to CAA section (g), U.S.C. (g). After this has undergone notice and comment, the Administrator and/or the Attorney General, as appropriate, shall promptly consider any written comments in determining whether to withdraw or withhold their consent to the, in accordance with CAA section (g). If the Administrator and/or the Attorney General do not elect to withdraw or withhold consent, EPA shall promptly file a motion that requests that the Court enter this.. Any notices required or provided for by this shall be in writing, via electronic mail or other means, and sent to the following (or to any new address of counsel as filed and listed in the docket of the above-captioned matter, at a future date):

9 Case:-cv-0-SBA Document0 Filed// Page of 0 For Plaintiff Center for Biological Diversity: For Defendant EPA: Robert Ukeiley Law Office of Robert Ukeiley Mountain Meadows Road Boulder, CO 00 Tel: [email protected] Jonathan Evans (Cal. Bar #) Center for Biological Diversity California St., Suite 00 San Francisco, CA Tel. -- x [email protected] Leslie M. Hill U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section 0 D Street N.W., Suite 000 Washington D.C. 000 Tel. (0) -0 [email protected]. EPA and Plaintiff recognize and acknowledge that the obligations imposed upon EPA under this can only be undertaken using appropriated funds legally available for such purpose. No provision of this shall be interpreted as or constitute a commitment or requirement that the United States obligate or pay funds in contravention of the Anti-Deficiency Act, U.S.C., or any other applicable provision of law. 0. If for any reason the Court should decline to approve this in the form presented, this agreement is voidable at the sole discretion of either party and the terms of the proposed may not be used as evidence in any litigation between the parties.

10 Case:-cv-0-SBA Document0 Filed// Page of. The undersigned representatives of Plaintiff Center for Biological Diversity and Defendant EPA certify that they are fully authorized by the party they represent to consent to the Court s entry of the terms and conditions of this Decree. SO ORDERED on this th day of, October 0. 0 SAUNDRA BROWN ARMSTRONG UNITED STATES DISTRICT JUDGE

11 Case:-cv-0-SBA Document0 Filed// Page of COUNSEL FOR PLAINTIFF: COUNSEL FOR DEFENDANT: /s/ Robert Ukeiley ( authorization //) Robert Ukeiley, Admitted Pro Hac Vice Law Office of Robert Ukeiley Mountain Meadows Road Boulder, CO 00 Tel: Jonathan Evans (Cal. Bar #) Center for Biological Diversity California St., Suite 00 San Francisco, CA Phone: -- x Fax: -- [email protected] Attorneys for Plaintiff Center for Biological Diversity SAM HIRSCH Acting Assistant Attorney General Environment & Natural Resources Division 0 Of counsel: Stephanie Hogan Karen Bennett Bianco Office of General Counsel U.S. Environmental Protection Agency /s/ Leslie M. Hill LESLIE M. HILL (D.C. Bar No. 00) Environmental Defense Section 0 D Street N.W., Suite 000 Washington D.C. 000 Tel. (0) -0 [email protected] Attorneys for Defendant EPA